EFTA00095067

B. 
The NPA Does Not Immunize Maxwell from Prosecution 
Even if the NPA bound this District—which it does not—the NPA provides no basis for 
dismissing the Indictment. The NPA does not protect the defendant, for at least two reasons. First, 
the text of the NPA specifically limits the scope of the NPA to certain federal crimes committed 
between 2002 and 2007, and thus the NPA does not apply to the distinct offenses and time periods 
charged in the Indictment. Second, the NPA does not protect the defendant at all, because the 
mere use of the word "co-conspirator" does not establish that the defendant was among the class 
of persons contemplated by the agreement, much less that the defendant has standing to enforce it. 
1. 
The NPA Is Limited to Particular Crimes Between 2001 and 2007 
Contrary to the defendant's assertions, the NPA did not provide carte blanche immunity to 
Epstein or his "co-conspirators." In fact, the NPA contains detailed provisions that limit the scope 
of the crimes immunized in the agreement. 
The NPA begins by outlining the scope of the USAO-SDFL investigation, delineating the 
timeframe of the investigation ("from in or around 2001 through in or around September 2007"), 
and listing each and every statutory offense under investigation. (NPA at 1). The NPA does this 
for a reason, because these terms are later used in the agreement to set the boundaries of immunity. 
In particular, the agreement provides: 
[N]o prosecution for the offenses set out on pages 1 and 2 of this 
agreement, nor any other offenses that have been the subject of the 
joint investigation by the Federal Bureau of Investigation and the 
United States Attorney's Office, nor any offenses that arose from 
the Federal Grand Jury investigation will be instituted in this 
District, and the charges against Epstein if any, will be dismissed. 
NPA at 2. Thus, the NPA barred the USAO-SDFL from prosecuting Epstein for the specific 
15 
EFTA00095107

offenses enumerated in the NPA.9 While these same limitations are not repeated in the provision 
that purports to immunize "co-conspirators," these limitations apply with equal force across the 
agreement, because that is the only common-sense way to read the NPA. Indeed, and as noted 
above in a related context, it would be exceedingly strange to interpret the "co-conspirator" 
provision to extend broader immunity than Epstein negotiated for himself. 
The defendant may assert that the "co-conspirator" provision has absolutely no limitations, 
but such an argument would lead to absurd results. In particular, in arguing that the "co-
conspirator" provision lacks any temporal or statutory limitations whatsoever, the defendant seems 
to claim that the NPA immunized her for future crimes including, for example, perjury offenses 
that she is charged with committing almost a decade after the NPA was executed. (Def. Mot. 1 at 
32 ("For the foregoing reasons, Ms. Maxwell respectfully requests that the Court dismiss the 
indictment.")). Although the defendant does not highlight this point in her motion—perhaps 
recognizing how absurd it would be—that is the natural consequence of her illogical interpretation 
of the NPA. Despite advancing an argument that strains common sense, the defendant cites no 
case in which a court has interpreted a plea agreement to bar prosecution for crimes that pre- or 
post-dated the period covered by the agreement. The Government is aware of no such authority. 
See United States v. Hallahan, 756 F.3d 962, 974 (7th Cir. 2014) (rejecting defense argument that 
plea agreement barred prosecution for subsequent bail jumping, and, in interpreting the 
9 By its plain terms, the NPA did not immunize Epstein for his "background," as the defendant 
suggests. (Def. Mot. 1 at 27). This provision refers, instead, to a list of "offenses" under federal 
law. Indeed, it is unclear how any plea agreement could immunize a defendant's "background." 
Similarly, the fact that the USAO-SDFL interviewed Victim-2 does not mean that this case "arose 
out of the USAO-SDFL investigation, an assertion the defendant's motion does not explain or 
support with evidence. As the Indictment makes clear, the events underpinning the Indictment 
involve multiple victims and specific legal charges that were not within the scope of the USAO-
SDFL investigation. As discussed in greater detail below, Minor Victim- I and Minor Victim-3 
were never interviewed by USAO-SDFL, and they did not agree to speak with law enforcement 
until 2019. 
16 
EFTA00095108

Government's promises in the plea agreement to only cover past crimes, observing that "not 
limiting the prohibition to past crimes would make it absurd and probably illegal.") (citing Aronson 
v. K. Arakelian, Inc., 154 F.2d 231, 233 (7th Cir. 1946) ("[A] contract will not be presumed to 
have imposed an absurd or impossible condition on one of the parties, but will be interpreted as 
the parties must be supposed to have understood the conditions at the time.")). 
Finally, the defendant claims that the NPA covers all violations of the Mann Act. (Def. 
Mot. 1 at 26 n. 4). Not so. The NPA lists specific statutory provisions within the Mann Act, but 
none of the provisions contained in the Indictment. In particular, the NPA expressly covers 
violations of 18 U.S.C. §§ 2422(b), 2423(6), and 2423(e), but does not include the particular 
provisions charged in the Indictment against Maxwell, which alleges violations of §§ 2422(a) and 
2423(a). These are plainly not the same crimes, and a plea agreement cannot be read to immunize 
unnamed crimes in the general ballpark of the specific crimes enumerated in the agreement. The 
defendant cites no authority that supports her overbroad reading of this provision. 
Accordingly, the NPA immunizes only certain, specific offenses, none of which are 
contained in the Indictment. As a result, the defendant cannot invoke the NPA to seek the dismissal 
of the Indictment. 
2. 
The NPA Does Not Confer Enforceable Rights On Maxwell 
Even if this Court were to construe the NPA beyond its plain terms to preclude prosecutions 
for the crimes contained in the Indictment, the defendant has established neither that those 
protections extend to Maxwell specifically, nor that she has standing to pursue those protections. 
The defendant asks this Court to interpret the NPA according to contract principles, and 
accord the defendant standing to enforce the NPA as a third party beneficiary. As a general matter, 
plea agreements are interpreted using principles from contract law, but that maxim is not without 
17 
EFTA00095109

limitations. As the defendant's motion recognizes, the Second Circuit has emphasized that plea 
agreements differ from commercial contracts in meaningful respects. (Def. Mot. 1 at 30 (citing 
United States v. Feldman, 939 F.3d 182, 189 (2d Cir. 2019) ("[W]hile the district court's analysis 
might have been compelling with respect to a contract arising out of commercial negotiations 
among private parties, we believe the court did not correctly apply the standards that govern the 
interpretation of plea agreements with the government. We have long recognized that plea 
agreements are significantly different from commercial contracts.")). Accordingly, although the 
third party beneficiary doctrine is a tenet of contract law, its application to plea agreements under 
federal law is a separate question. 
The defendant correctly notes that plea agreements may address leniency for third parties. 
(Def. Mot. 1 at 15). However, it does not necessarily follow that a third party may enforce such a 
promise. Indeed, it is far from clear that, under federal law, a third party may enforce a plea 
agreement. At least one court in this Circuit has noted the absence of authority that a third party 
has standing to enforce another individual's plea agreement. See Santobello v. United States, No. 
94 Cr. 119 (RPP), 1998 WL 113950, at *3 (S.D.N.Y. Mar. 13, 1998) ("Even if Santobello could 
establish the existence of plea agreements between the Government and his co-defendants, there 
is little known authority that would allow him to enforce the agreements as a third party 
beneficiary.") (citing United States v. Lopez, 944 F.2d 33, 36-37 (1st Cir. 1991)). 
Following this logic, at least one court has concluded that third parties lack standing to 
enforce plea agreements. In United States v. Mariamma Viju, the defendant claimed that the 
Government had entered into a plea agreement with her husband, under which the Government 
had promised not to prosecute her. No. 15-CR-240, 2016 WL 107841, at *1 (N.D. Tex. Jan. II, 
2016). Observing that the principles governing interpretation of plea agreements diverge in many 
18 
EFTA00095110

respects from those underlying contract law, the district court concluded that "third-party 
beneficiaries have no contractual right to enforce plea agreements." Id. at '3-4. The court 
reasoned, "[t]he right to enforce a plea deal does not exist for its own sake; rather, it is a means to 
achieve fairness in plea bargaining." Id. at '4. That is because a defendant has the right to enforce 
his plea agreement, and "enforcement by third parties adds nothing to protecting the defendant's 
right." Id. The same holds true here. 
In support of her claim that she has standing to enforce the NPA, the defendant relies upon 
three district court decisions, none of which analyzed the threshold question of whether third party 
standing concepts from contract law apply to plea agreements. In United States v. Florida West 
Int 'I Airways, Inc., 853 F. Supp. 2d 1209, 1228 (S.D. Fla. 2012), the district court applied the third 
party beneficiary doctrine to a former airline employee based on a prior plea agreement with the 
airline that immunized, among others, current and former employees of the airline and its 
subsidiaries. In its analysis, however, the court applied the doctrine without analyzing the question 
of whether third party beneficiary standing principles apply to plea agreements. Id. For similar 
reasons, the defendant's reliance on United States v. El-Sadig, 133 F. Supp. 2d 600, 608-09 (N.D. 
Ohio 2001) is misplaced. In that case, the court permitted a third party to invoke a plea agreement, 
but it did not analyze or address whether third party standing rules apply to plea agreements. Id. 
Likewise, in United States v. CFW Const. Co., 583 F. Supp. 197, 203 (D. S.C. 1984), the court 
applied the third party beneficiary doctrine, but relied solely on contracts treatises for support, and 
did not analyze whether that doctrine should be applied to plea agreements. 
In any event, even if third party beneficiaries had standing to enforce federal plea 
agreements, the defendant has failed to establish that she is a third party beneficiary of the NPA. 
In order to establish that she has enforceable rights under the NPA, the defendant must show that 
19 
EFTA00095111

"a direct and primary object of the contracting parties was to confer a benefit on the third party." 
Florida West Intl Airways, Inc., 853 F. Supp. 2d at 1228 (quoting Bochese v. Town of Ponce Inlet, 
405 F.3d 964, 982 (11th Cir. 2005)). In other words, "the intent of the parties is the key" to 
evaluating whether an individual is a third party beneficiary. Id. 
Here, the defendant has offered no evidence that the parties intended to confer a benefit to 
her in particular, or that her crimes in the 1990s make her a member of the class of "co-
conspirators" the parties had in mind when they negotiated the NPA. To the contrary, the OPR's 
investigation of the circumstances surrounding the inclusion of this provision in the NPA strongly 
undercuts any such argument, and OPR's findings demonstrate that the parties did not intend to 
confer a benefit on the defendant. With respect to the "co-conspirator" provision, the OPR Report 
concluded, in relevant part: 
Other than various drafts of the NPA and of a federal plea 
agreement, OPR found little in the contemporaneous records 
mentioning the provision and nothing indicating that the subjects 
discussed or debated it—or even gave it much consideration. Drafts 
of the NPA and of the federal plea agreement show that the final 
broad language promising not to prosecute "any potential co-
conspirators of Epstein" evolved from a more narrow provision 
sought by the defense. The provision expanded as [USAO-SDFL 
prosecutor Maria] Villafana and defense counsel exchanged drafts 
of, first, a proposed federal plea agreement and, then, of the NPA, 
with apparently little analysis and no substantive discussion within 
the USAO about the Provision. 
OPR Report at 166. With respect to Maxwell in particular, OPR interviewed Maria Villafaiia, the 
lead prosecutor on the case, and noted: 
Villafafia acknowledged that investigators were aware of Epstein's 
longtime relationship with a close female friend who was a well-
known socialite, but, according to Villafaha, in 2007, they "didn't 
have any specific evidence against her." Accordingly, Villafaila 
believed that the only "co-conspirators" of Epstein who would 
benefit from the provision were the four female assistants identified 
by name. 
20 
EFTA00095112

OPR Report at 167.1° After reviewing the facts and circumstances of the negotiation, OPR 
concluded that "the evidence does not show that [Former USAO-SDFL U.S. Attorney Alex] 
Acosta, [Former USAO-SDFL supervisor Andrew] Lourie, or Villafafia agreed to the 
nonprosecution provision to protect any of Epstein's political, celebrity, or other influential 
associates." OPR Report at 168." 
In view of OPR's conclusions—and in the absence of any evidence to the contrary 
proffered by the defendant—the defendant has failed to establish that that she was an intended 
third party beneficiary of the NPA. Accordingly, the defendant lacks standing to enforce the NPA. 
C. 
The Defendant Has Offered No Basis for Additional Discovery or a Hearing 
The defendant's motion for discovery and a hearing fares no better. 
Lacking any 
evidence—much less any legal authority—that the NPA applies to this District or the crimes in 
the Indictment, the defendant asks the Court to order discovery and conduct a hearing. In short, 
10 The OPR Report further reflects that in OPR's interview of Villafafia, she reported that she did 
not have anyone in mind aside from the four individuals named in the "co-conspirator" provision: 
"Villafafia told OPR that she was willing to include a non-prosecution provision for Epstein's co-
conspirators, who at the time she understood to be the four women named in the proposed 
agreement, because the USAO was not interested in prosecuting those individuals if Epstein 
entered a plea. Villafafia told OPR, `[W]e considered Epstein to be the top of the food chain, and 
we wouldn't have been interested in prosecuting anyone else.' She did not consider the possibility 
that Epstein might be trying to protect other, unnamed individuals, and no one, including the FBI 
case agents, raised that concern." OPR Report at 70. Further, the OPR Report notes that: 
"Villafafia told OPR that, apart from the women named in the NPA, the investigation had not 
developed evidence of `any other potential co-conspirators.'" Id. at 81. Similarly, the report 
reflects that a supervisor at USAO-SDFL told OPR "that it never occurred to him that the reference 
to potential co-conspirators was directed toward any of the high-profile individuals who were at 
the time or subsequently linked with Epstein." OPR Report at 80-81. 
" Although the defendant correctly notes that the OPR Report reflects that the prosecutor remarked 
that Epstein "wanted to make sure that he's the only one who takes the blame for what happened," 
OPR Report at 167, that desire explains the existence of the "co-conspirator" provision, but it does 
not inform its meaning or scope. 
21 
EFTA00095113

the defendant asks this Court to authorize an extensive and burdensome fishing expedition, 
premised on the defendant's pure conjecture. The Court should deny the motion. 
Although the defendant asserts that the Court is obligated to conduct a hearing, she has 
failed to establish that any hearing is warranted. The defendant argues that courts conduct 
evidentiary hearings "where the existence or scope of a plea agreement or non-prosecution 
agreement is in genuine dispute." (Def. Mot. 1 at 29). But the defendant has not established any 
genuine factual dispute in this case that a hearing would be required to resolve. The defendant has 
offered bare conclusions in support of her motion, which are refuted by governing law, record 
evidence, and the four corners of the agreement itself. That is not a basis for a hearing. 
As the Second Circuit explained in United States v. Aleman, "a district court need not 
conduct a hearing every time a defendant summarily accuses the government of failing to live up 
to an alleged bargain." 286 F.3d 86, 91 (2d Cir. 2002). In that case, the court held that a hearing 
was required because the defendant had submitted affidavits from his attorney, as well as 
corroborating affidavits from other attorneys, and the Government had not submitted any evidence. 
Id; see also United States v. Sattar, 272 F. Supp. 2d 348, 383 (S.D.N.Y. 2003) (applying Aleman, 
and ordering an evidentiary hearing based upon the defendant's submission of an affidavit from 
an attorney with knowledge of the alleged oral agreement). Similarly, in United States v. Feldman, 
the Second Circuit held that a hearing was required based on the defendant's uncontested 
assertions about specific representations made to him by a prosecutor. 939 F.3d 182, 184, 190 (2d 
Cir. 2019). Here, by contrast, the defendant has offered no evidence in support of her allegations. 
The defendant cannot seriously argue that she has made the type of showing that requires a 
hearing. For example, she has not offered any affidavits from Epstein's former defense attorneys 
claiming that the USAO-SDFL made promises that were not contained in the NPA. Nor has she 
22 
EFTA00095114

pointed to anything in the extensive record of either the OPR investigation or the civil litigation 
surrounding the NPA that would suggest that the NPA applies to this District, or to the crimes in 
the Indictment, or to Maxwell. In the absence of any such evidence—and in the face of substantial 
contrary evidence gathered in the civil litigation and OPR investigation—the Court has no 
obligation to conduct a hearing. 
For similar reasons, the defendant's motion for discovery should be denied. To the extent 
the defendant seeks discovery under Rule 16, she has failed to meet her burden. A defendant 
seeking discovery under Rule 16 "must make a prima fade showing of materiality and must offer 
more than the conclusory allegation that the requested evidence is material." United States v. 
Urena, 989 F. Supp. 2d 253, 261 (S.D.N.Y. 2013) (citations omitted). Here, the defendant has 
offered nothing more than her conjecture that some unspecified evidence might exist. The motion 
should be denied. 
II. 
The Indictment Is Timely 
Counts One through Four are timely charged because the applicable limitations period, 18 
U.S.C. § 3283 (2003), permits prosecution for offenses "involving the sexual or physical abuse .. 
. of a child" at any time "during the life of the child," and each of the victims identified in the 
indictment remains alive. Maxwell contends that Section 3283 should not be applied to conduct 
that predated its amendment in 2003, but that argument is contrary to the text of the statute, 
Congress's clear intent when extending the statute of limitations, and the decisions of other circuits 
and district courts in this Circuit. In effect, the defendant's motion asks this Court to break new 
ground, and become the first court to hold that § 3283 applies only prospectively. 
In the alternative, Maxwell argues that Section 3283 is inapplicable because the offenses 
charged in the Indictment do not "involv[e] the sexual or physical abuse .. . of a child." Def. Mot. 
23 
EFTA00095115

2 at 12-14. Yet her argument runs contrary to the weight of authority that has adopted the common-
sense view that crimes that necessarily entail the sexual or physical abuse of children "involv[e] 
the sexual or physical abuse of a child." This Court should do the same and deny the motion. 
A. 
Statutory Background 
Between 1990 and 2006, Congress passed a series of laws that expanded the statute of 
limitations for prosecutions of crimes against minors, ultimately extending the statute of 
limitations to the lifetime of the minor victim and, for certain offenses, eliminating the statute of 
limitations entirely. These laws reflect a virtually unbroken congressional policy that the default 
five-year statute of limitations for federal crimes, 18 U.S.C. § 3282, is inadequate for such 
offenses. An extended statute of limitations is necessary because "child sex abuse offenses . . . 
may be difficult to detect quickly," in part because children often first report their abuse long after 
it occurs. Weingarten v. United States, 865 F.3d 48, 54 (2d Cir. 2017) (citing, e.g., David McCord, 
Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions, 77 J. 
Crim. L. & Criminology I, 60-61 (1986)). 
In 1990, Congress enacted a new statute of limitation for certain crimes against children, 
which stated: "No statute of limitation that would otherwise preclude prosecution for an offense 
involving the sexual or physical abuse of a child under the age of 18 years shall preclude such a 
prosecution before the child reaches the age of 25 years." Crime Control Act of 1990, Pub. L. No. 
101-647, tit. II, § 225(a), 104 Stat. 4789, 4798 (codified at 18 U.S.C. § 3509(k) (1990)). In 1994, 
Congress re-codified this provision, moving it to 18 U.S.C. § 3283 with identical language. 
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, tit. XXXIII, 
§ 330018(a), 108 Stat. 1796, 2149 (codified at 18 U.S.C. § 3283 (1994)) ("No statute of limitations 
that would otherwise preclude prosecution for an offense involving the sexual or physical abuse 
24 
EFTA00095116

of a child under the age of 18 years shall preclude such prosecution before the child reaches the 
age of 25."). 
As the Second Circuit has recognized, "after nearly a decade, Congress began to view even 
the extended statute of limitations period in the 1994 version of § 3283 as `inadequate in many 
cases' because it released from criminal liability sex abusers whose crimes were not brought to the 
attention of federal authorities until after their victims turned twenty-five." Weingarten, 865 F.3d 
at 54 (citing H.R. Conf. Rep. No. 108-66, at 54 (2003)). Accordingly, in April 2003, Congress 
amended § 3283 to permit the prosecution of sex offenses against minors at any time during the 
lifetime of the minor victim. Prosecutorial Remedies and Tools Against the Exploitation of 
Children Today Act ("PROTECT Act") of 2003, Pub. L. No. 108-21, tit. II, § 202, 117 Stat. 650, 
660 (codified at 18 U.S.C. § 3283 (2003)) ("No statute of limitations that would otherwise preclude 
prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under 
the age of 18 years shall preclude such prosecution during the life of the child."). 
In January 2006, Congress further amended § 3283 to its current form to permit the 
prosecution of such offenses during the lifetime of the victim or ten years after the offense, 
whichever is longer. Violence Against Women and Department of Justice Reauthorization Act of 
2006, Pub. L. No. 109-162, tit. XI, § 1182(c), 119 Stat. 2960, 3126 (codified at 18 U.S.C. § 3283 
(2006)) ("No statute of limitations that would otherwise preclude prosecution for an offense 
involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall 
preclude such prosecution during the life of the child, or for ten years after the offense, whichever 
is longer."). 
Finally, later that same year, Congress enacted a new statute as part of the Adam Walsh 
Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. That statute 
25 
EFTA00095117

eliminated the statute of limitations entirely for certain crimes involving the sexual exploitation of 
minors. Id. tit. II, § 211(1), 120 Stat. at 616 (codified at 18 U.S.C. § 3299). 
B. 
The 2003 Amendment to Section 3283 Applies Retroactively 
Counts One through Four of the Indictment charge crimes that occurred between 1994 
and 1997. At the time of the offense conduct, the applicable statute of limitations, 18 U.S.C. 
§ 3283 (1994), ran until "the child reaches the age of 25." However, in 2003, while the statute of 
limitations had not yet run for the crimes charged in the Indictment)-, Congress amended the 
statute, extending the limitations period to permit a prosecution at any time "during the life of the 
child." 18 U.S.C. § 3283 (2003). Because the victims are all alive, the indictment is timely under 
the 2003 amendment. 
Put simply, the 2003 amendment applies to any conduct that could have been charged at 
the time of its enactment. The legislative purpose behind § 3283 and a plain reading of the statute 
compel this conclusion, and courts have repeatedly held that the 2003 amendment applies 
retroactively, provided that the statute of limitations had not run for the offense at the time of the 
amendment. See, e.g., United States v. Leo Sure Chief, 438 F.3d 920, 922-25 (9th Cir. 2006) 
("Because Congress evinced a clear intent to extend, rather than shorten, the statute of limitations 
applicable to sexual abuse crimes, and because there is no ex post facto problem here, the 
prosecution was timely.") (citing United States v. Jef•ies, 405 F.3d 682, 685 (8th Cir. 2005), cert 
denied, 546 U.S. 1007 (2005)); United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) 
("Because Congress evinced a clear intent to extend the statute of limitations for these types of 
crimes in its amendments, and because there is no ex post facto problem here, the prosecution was 
timely."), cert. denied, No. 20-5064, 
S.Ct. , 2021 WL 78235 (January 11, 2021); United States 
12 The timeliness of the charges in the Indictment in 2003 is discussed in greater detail below. 
26 
EFTA00095118

v. Pierre-Louis, No. 16 Cr. 541 (CM), 2018 WL 4043140, at *1 (S.D.N.Y. Aug. 9, 2018) (denying 
motion to dismiss child exploitation charges as time-barred) ("Defendant's argument rests on the 
erroneous premise that the law requires the defendant to have committed the charged offense after 
the effective date of the extension of the statute of limitations for the charge to not be time-barred. 
As long as the original statute of limitations had not lapsed when the extension went into effect, 
the prosecution is not time-barred."); United States v. Semi, No. 08 Cr. 253, 2010 WL 2351484, 
at '2 (D. Conn. 2010) (holding that the 2003 amendment of § 3283 applies to pre-enactment 
conduct, and rejecting the argument "that the lack of a savings clause in the 2003 version of section 
3283 is fatal to extending the statute of limitations."); United State v. Nader, 425 F. Supp. 3d 619, 
624-30 (E.D. Va. 2019) (holding that the 2003 amendment of § 3283 applies to pre-enactment 
conduct). 
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court set forth a 
two-part framework for determining whether a statute applies retroactively. At step one of the 
analysis, "if Congress `expressly prescribed' that a statute applies retroactively to antecedent 
conduct, 'the inquiry ends[] and the court enforces the statute as it is written,' save for 
constitutional concerns." Weingarten, 865 F.3d at 54-55 (quoting In re Enter. Mon. Acceptance 
Co. Sec. Litig. ("Enterprise"), 391 F.3d 401, 405-06 (2d Cir. 2004)). However, "when a statute 
'is ambiguous or contains no express command' regarding retroactivity, a reviewing court must 
determine whether applying the statute to antecedent conduct would create presumptively 
impermissible retroactive effects." Id. For the reasons set forth below, the 2003 amendment of 
18 U.S.C. § 3283 satisfies both steps of Landgraf, and should be applied to pre-enactment conduct. 
1. 
The 2003 Amendment Satisfies Step One of Landgraf 
At step one of the Landgraf analysis, the question is whether Congress has "expressly 
prescribed the statute's proper reach." Landgraf, 511 U.S. at 280. When evaluating Congress's 
27 
EFTA00095119

intent at step one of the Landgraf inquiry, the Second Circuit has considered both the text of the 
statute and the legislative history. Enterprise, 391 F.3d at 406-08. In this case, the amended 
versions of § 3283 evince Congress's express intent to extend the statute of limitations. The text 
and history of § 3283 firmly establish that, with each amendment of the statute of limitations, 
Congress intended to repeal and replace the prior version of the statute and thereby extend the time 
to bring live charges of child sexual abuse. 
The 2003 amendment, like the 1994 version of the statute, specifically states that "[n]o 
statute of limitations that would otherwise preclude prosecution" of a child sexual offense "shall 
preclude" prosecution of such offense during the life of the victim. 18 U.S.C. § 3283 (2003). 
Claims that were live in 2003 were, at the time, subject to the then-existing statute of limitations, 
which ran until the victims reached the age of 25. Whenever that statute of limitations ran, it would 
"otherwise preclude prosecution." Instead, that statute of limitations was replaced by the 2003 
amendment. 
The Eighth and Ninth Circuits have both held that Congress intended to extend the statute 
of limitations for live claims of sexual abuse. In United States v. Jef•ies, the Eighth Circuit 
reasoned that "both the title and wording of § 3509(k) indicate that Congress intended by it to 
extend the general statute of limitations.... § 3509(k) was later recodified at § 3283 and continued 
to extend the statute of limitations in child abuse cases." 405 F.3d 682, 684 (8th Cir. 2005) (citing 
United States v. Johns, 15 F.3d 740, 743 (8th Cir. 1994) (holding that an earlier version of 
§ 3509(k) applied to conduct predating its enactment in 1990)). The Eighth Circuit's reasoning—
which addressed earlier versions of the statute—applies with equal, if not greater, force to the 2003 
amendment, which established an even broader statute of limitations. Following Jellies, the Ninth 
Circuit has similarly held that § 3283 applies retroactively, because "Congress evinced a clear 
28 
EFTA00095120

intent to extend" the statute of limitations. Leo Sure Chief, 438 F.3d at 924 (citing Jeffries, 405 
F.3d at 685). 
Not only does the wording of the statute clearly express that Congress intended for the 2003 
amendment to be the only governing statute of limitations for live claims of child sexual abuse, 
but the legislative history also supports this conclusion. The Joint Report accompanying the 2003 
amendment explains that Congress wanted to expand the statute of limitations out of concern that 
the 1994 amendment did not go far enough to ensure that perpetrators of child sexual abuse were 
held to account: 
While [the statute of limitations allowing for prosecution until the 
victim reaches age 25] is better than a flat five-year rule [under 
Section 3282], it remains inadequate in many cases. For example, a 
person who abducted and raped a child could not be prosecuted 
beyond this extended limit — even if DNA matching conclusively 
identified him as the perpetrator one day after the victim turned 25. 
H.R. Conf. Rep. No. 108-66, at 54 (2003). Congress's express intention was to prevent 
perpetrators of crimes against children from escaping justice based on a timing technicality. 
Moreover, since the 2003 amendment extended the statute of limitations throughout the lifetime 
of the victim, it is clear that Congress expressly authorized prosecutions to occur decades after 
crimes had been committed.13
13 Although the defendant claims that prosecuting her crimes now presents unique fairness 
concerns, there is nothing unusual about prosecuting sex crimes long after they have occurred. See 
United States v. Brown, 800 F. App'x 455, 461 (9th Cir. 2020) (2014 indictment charging, among 
other crimes, sex trafficking offenses dating to 2000 and 2001), cert. denied, No. 20-5064, -- S. 
Ct. -- , 2021 WL 78235 (January 11, 2021); United States v. Pierre-Louis, No. 16 Cr. 541 (CM), 
2018 WL 4043140, at *1 (S.D.N.Y. Aug. 9, 2018) (2016 indictment covering conduct going back 
to 1998); United State v. Nader, 425 F. Supp. 3d 619, 622 (E.D. Va. 2019) (2019 indictment for 
conduct in 2000). Indeed, that is precisely what Congress authorized when it extended the statute 
of limitations for such crimes through the lifetime of the victim. 
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The defendant argues that Congress did not intend for § 3283 to apply to pre-enactment 
conduct, and asserts that the legislative history supports this interpretation. Specifically, the 
defendant points to an earlier version of the bill, which contained an express retroactivity provision 
that was not included in the final version of the statute. Def. Mot. 2 at 6-7. The defendant's 
argument on this point is both misleading and unpersuasive. The defendant quotes Senator Patrick 
Leahy's comments on the 2003 conference committee report to the effect that "the conference 
agreed to drop language from the original House-passed bill that would have extended the 
limitations period retroactively." Def. Mot. 2 at 7. This is a selective quotation; the full statement 
regarding retroactivity is as follows: 
A final point on section 202: I am pleased that the conference agreed to drop 
language from the original House-passed bill that would have extended the 
limitations period retroactively. That language, which would have revived the 
government's authority to prosecute crimes that were previously time-barred, is of 
doubtful constitutionality. We are already pushing the constitutional envelope with 
respect to several of the "virtual porn" provisions in this bill. I am pleased that we 
are not doing so in section 202 as well. 
149 Cong. Rec. S 5137, 55147 (Apr. 10, 2003) (statement of Sen. Leahy) (emphasis added). As 
the full quotation makes clear, the legislative history does not support the conclusion that when 
Congress amended § 3283, it declined to adopt the language in the House-passed bill because it 
wanted the lengthened statute of limitations to apply only prospectively. Instead, Senator Leahy's 
comments indicate that Congress declined to add language that would allow for the resurrection 
of time-barred prosecutions, in violation of the Ex Post Facto Clause." But that concern is entirely 
" Moreover, the fact that Congress considered, but ultimately omitted, retroactivity language does 
not end the Landgraf inquiry, as the defendant suggests. Indeed, Landgraf itself makes this clear. 
In that case, the statute at issue had a predecessor, which contained a retroactivity provision. That 
version was vetoed by the President, and the final version of the statute omitted the retroactivity 
provision. As the Supreme Court explained, "[t]he omission of the elaborate retroactivity 
provision of the 1990 bill—which was by no means the only source of political controversy over 
that legislation—is not dispositive because it does not tell us precisely where the compromise was 
struck in the 1991 Act." Landgraf, 511 U.S. at 256. Indeed, "[i]t [was] entirely possible—indeed, 
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separate from extending the statute of limitations for live claims, which is what Congress did here. 
Critically—and as discussed in greater detail below—there is no Ex Post Facto Clause issue in this 
case, because the statute of limitations for Counts One through Four had not yet expired when the 
limitations period was extended in 2003.15
Accepting the defendant's argument would undermine Congress's plain purpose in 
extending the limitations period. In 1990, 2003, and 2006, Congress extended—and ultimately 
abolished—the statute of limitations to ensure that prosecutors could seek justice for child sex 
abuse victims who come forward or identify their abusers after a delay. Applying the 2003 statute 
only prospectively subverts that purpose by exempting all past offenders. According to the 
defendant, in 2003, Congress wanted to ensure that every perpetrator who abused a minor in the 
future was subject to prosecution for the lifetime of the minor, but Congress simultaneously was 
content to let all previous perpetrators avoid prosecution whenever their victims turned twenty-
five. No such intent is manifest in either the text or in Senator Leahy's statement. 
highly probable—that, because it was unable to resolve the retroactivity issue with the clarity of 
the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts." 
Id. at 261. 
15 Minor Victim-1 and Minor Victim-2 were both younger than 25 in 2003, when Congress 
extended the limitations period. Minor Victim-3 was not, but this does not alter the inquiry, 
because the Indictment does not contain any counts that relate to Minor Victim-3 alone. Instead, 
she is one of multiple victims of the conspiracies charged in Counts One and Three. The inclusion 
of the overt acts relating to Minor Victim-3 in an otherwise timely conspiracy count does not 
render that count untimely. To the contrary, for conspiracy counts, the Government is only 
required to prove that one overt act in furtherance of the conspiracy occurred within the limitations 
period. United States v. Ben Zvi, 242 F.3d 89, 97 (2d Cir. 2001). Thus, the defendant is incorrect 
to assert that the government is "barred" from prosecuting the defendant for any offense against 
Minor Victim-3. Def. Mot. 2 at 10, n.3. Instead, there is no statute of limitations issue here so 
long as the jury is properly instructed at trial that it must find at least one overt act within the 
limitations period—Le., one overt act that does not relate to Minor Victim-3. 
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The reach of § 3283 is clear. Because Congress has expressly extended the statute of 
limitations to pre-enactment conduct, the Court should resolve its analysis at Landgraf step one, 
and apply the statute as Congress intended. In the alternative, however, the statute is—at worst—
ambiguous. If the Court takes that view, it should proceed to Landgraf step two. 
2. 
The 2003 Amendment Satisfies Step Two of Landgraf 
If the Court were to determine that the legislative intent behind § 3283 is ambiguous, the 
inquiry then extends to the second step of the Landgraf analysis, which examines the retroactive 
effects of the statute. As the Supreme Court explained in Landgraf, "[a] statute does not operate 
`retrospectively' merely because it is applied in a case arising from conduct antedating the statute's 
enactment, or upsets expectations based in prior law." 511 U.S. at 269. Instead, the question is 
whether the statute "would impair rights a party possessed when he acted, increase a party's 
liability for past conduct, or impose new duties with respect to transactions already completed." 
Vernon v. Cassadaga Valley Cent. School Dist, 49 F.3d 886, 890 (2d Cir. 1995) (quoting 
Landgraf, 511 U.S. at 280). Applying § 3283 here would have none of those effects. Maxwell's 
rights, liabilities, and duties were governed by the substantive criminal statutes governing her 
conduct. Until the statute of limitations expired, Maxwell had the same legal liability, the same 
rights, and the same incentives to retain evidence. A statute extending that period attaches no new 
legal consequences; rather, it preserves the status quo. Therefore, the statute does not operate 
"retrospectively" within the meaning of Landgraf See Cruz v. Maypa, 773 F.3d 138, 145 (4th Cir. 
2014) ("[A]pplying [an] extended limitations period to claims that were unexpired at the time of 
its enactment does not give rise to an impermissible retroactive effect under Landgraf.").
The Second Circuit has considered in three cases whether retroactive statutes of limitation 
are permissible under Landgraf. In Vernon v. Cassadaga Valley Cent. School Dist, the Second 
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Circuit held that a new statute shortening the filing period for a civil claim applied retroactively. 
Id. 
In reaching that conclusion, the Second Circuit noted that "Landgraf and other cases 
countenance treating statutes of limitations differently from statutory provisions that affect 
substantive rights," because statutes of limitations regulate secondary, and not primary conduct. 
Vernon, 49 F.3d. at 890-91. In In re Enterprise Mortgage Acceptance Co., 391 F.3d 401 (2d Cir. 
2004), the Second Circuit held that applying an extended statute of limitations retroactively created 
impermissible retroactive effects. Yet in that case, it was critical to the Court's analysis that—
unlike here—the statute revived claims that were previously time-barred. Id. at 410 ("In our view, 
the resurrection of previously time-barred claims has an impermissible retroactive effect."). 
In Weingarten, the Second Circuit considered, but did not ultimately reach, the issue of 
whether § 3283 applies retroactively.16 In discussing the second step of Landgraf, the Court 
observed: "Courts have routinely recognized a difference between revoking a vested statute of 
limitations defense and extending a filing period for live claims." Id. at 57 (collecting cases). 
Moreover, in an opinion by Judge Learned Hand, the Second Circuit explained why extending an 
active criminal statute of limitations does not offend any concept of fairness: 
Certainly it is one thing to revive a prosecution already dead, and 
another to give it a longer lease of life. The question turns upon how 
much violence is done to our instinctive feelings of justice and fair 
play. For the state to assure a man that he has become safe from its 
pursuit, and thereafter to withdraw its assurance, seems to most of 
us unfair and dishonest. But, while the chase is on, it does not shock 
us to have it extended beyond the time first set, or, if it does, the 
stake forgives it. 
16 The First Circuit has similarly considered this issue in the context of an ineffective assistance of 
counsel claim, and declined to reach the issue of whether Section 3283 applies retroactively. 
United States v. Miller, 911 F.3d 638, 644 (1st Cir. 2018). 
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Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928). The distinction between statutes that 
revive expired prosecutions and those that extend existing limitations periods has deep roots in 
established jurisprudence. It is well-settled that the Ex Post Facto Clause prohibits laws that revive 
time-barred prosecutions, but permits laws that retroactively extend limitations periods. Stogner 
v. California, 539 U.S. 607, 632 (2003) (holding that the Ex Post Facto Clause does not "prevent 
the State from extending time limits for . . . prosecutions not yet time barred."); United States v. 
Morgan, 113 F.3d 1230 (2d Cir. 1997) (table) ("The long-standing rule in this circuit is that 
Congress has the power to extend the period of limitations without running afoul of the ex post 
facto clause, provided the original period has not already run.") (citing Falter, 23 F.3d at 425-26). 
And other circuits have emphasized this distinction in the context of § 3283. United States v. Leo 
Sure Chief, 438 F.3d 920, 922-25 (9th Cir. 2006); United States v. Jeffiies, 405 F.3d 682, 685 (8th 
Cir. 2005). 
Read together, the Second Circuit's decisions in Weingarten, Vernon, Enterprise, and 
Falter establish that Congress may retroactively extend the limitations period for still-viable 
prosecutions. That is precisely what has occurred here, because the charges in the Indictment were 
still timely when the 2003 amendment extended the limitations period. As a result, applying 
§ 3283 in this case does not create impermissible retroactive effects. Therefore, step two of 
Landgraf is satisfied, and § 3283 applies retroactively. 
Resisting this conclusion, the defendant asserts that, in the criminal context, Landgraf s 
second step provides protections beyond the Ex Post Facto Clause. But that is not the law. See 
Nader, 425 F. Supp. 3d at 630 (rejecting the argument that "there is `daylight' between the Ex Post 
Facto Clause and Landgraf s second step."). Maxwell cites no precedent for the proposition that, 
in the criminal context, much less in the context of criminal statutes of limitations, Landgraf 
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